Wednesday, August 6, 2014

"Absolute Immunity": The Deadliest Weapon in the Prosecutor's Arsenal

“Prosecutors are
rewarded for winning at all costs, they have no incentive to seek the truth
rather than a conviction, and they are entirely unaccountable when they pervert
justice in pursuit of victory,” observes Idaho resident John T. Bujak. “People shouldn't
believe that their innocence provides any protection. The question isn't
whether you have done anything wrong, but whether the criminal justice system
is going to target you – and once you're in that system, you face prohibitive
odds of emerging from it without being hurt.”

Bujak has spent a considerable portion of the past
four years in court on the other end of the government's prisoner-manufacturing
apparatus, acting as his own defense counsel in multiple trials involving
charges of embezzlement and bankruptcy fraud. He is five-for-five as his own defense
attorney, a record that testifies of either his considerable skill as an
advocate, the poverty of the charges against him, the depth of the enmity he
has inspired within the Canyon County justice system, or perhaps all three.

“My experiences illustrate
the reality of prosecutorial over-reach, and the ease with which people can
find themselves in court facing prison time and financial ruin over charges
that have no merit,” Bujak told me during a quiet meeting in a Nampa coffee
shop in the company of his wife, Crystalee. “That's why about ninety percent of
the people who face federal charges accept a deal in exchange for foregoing
their right to a trial. They're terrified, which is understandable, and if they
wind up with a public defender they'll be fed into a plea-bargaining machine.
And prosecutors know that the key to career advancement is to win convictions.
This is especially true of elected prosecutors, such as district attorneys.
Early in my career, one of my mentors told me that no DA ever lost a
re-election campaign for being too tough on crime – and the public assumes that
a high conviction rate offers the best measure of a DA's toughness.”

Bujak's outspoken
criticism of his former profession might be seen by some as a product of his
own recent travails. There is reason to believe that his ouster by what he
calls –with little originality, but considerable vehemence – the “Good Old Boy
Network” was prompted by some principled stands he took in pursuit of official
accountability.

He's seen both sides: Bujak prior to trial.

Alone among
Idaho's 44 district attorneys, Bujak endorsed the “Uniform Post-Conviction Procedure
Act,” which was created
with input from the Innocence Project. That measure states that for any conviction in which identity was the
key question, and “fingerprint or forensic DNA test results demonstrate, in
light of all admissible evidence, that the petitioner is not the person who
committed the offense, the court shall order the appropriate relief,” which can
be overturning the conviction and ordering a new trial.

“When that bill
was introduced in the Legislature, the Idaho Prosecuting Attorneys Association met and determined that they would not
support it,” Bujak recounted to me. That’s a group that includes not only the
District Attorneys, but hundreds of deputy prosecutors and assistant
prosecutors state-wide. “I was the only member of the IPAA who endorsed the
bill, because I believe that truth shouldn't have an expiration date,” Bujak
recalled.

The case was
cleared by the Canyon County DA's office years before Bujak's election, but in
reviewing the files he became convinced that “an injustice had been done.” Significantly,
one of his first personnel decisions as Canyon County DA was to ask for the resignation
of Deputy DA Virginia Bond, who had prosecuted the case. Whatever else can be
said about Bujak’s short-lived career as Canyon County DA, it is indisputable
that his decision to reopen that case made him a lot of enemies very quickly.

Survivor: Linda LeBrane.

Linda LeBrane, a middle-aged woman from Washington,
was driving east on I-84 near Caldwell in June 2000 when she was forced off the
road by a vehicle carrying three men and a young woman. The strangers dragged LeBrane
from her car and demanded that she give them drugs and money. The victim
eagerly surrendered all the money in her possession – a total of forty dollars
and a credit card – while pleading for her life.

The assailants
beat and stabbed LeBrane; one of them struck her in the head with a baseball
bat. They left – but came back in a few minutes to set her car on fire. This
actually proved to be her salvation: The flames attracted the attention of two
young men who found LeBrane dying on the ground. She survived the attack, but
was psychologically shattered by the experience.

Two years later,
three suspects were arrested, one of whom, Kenneth Wurdeman, confessed to his
role in the hideous crime. Investigators still hadn't found the woman who
participated in the assault, who was described as a short, petite, very pretty
young Hispanic woman who spoke both English and Spanish. Detective Wayne
Christie, an investigator with the Canyon County Sheriff's Office, interrogated
a young woman named Erica Curiel, who fit the description perfectly. She was
released after reportedly passing a polygraph examination. Christie protested
that decision, and was quickly given what could be considered a punitive transfer
to jail duty.

Sarah Pearce.

For reasons that
have never been adequately explained, the investigation focused on a
17-year-old girl named Sarah Pearce, who was in a Job Corps program following a
narcotics conviction. A jailhouse informant claimed that Pearce “ran with” one
of the suspects, and that dubious assertion was the only thing connecting her
to the crime.

Unlike the suspect described by LeBrane, Pearce was a Tomboyish,
red-haired, freckle-faced Anglo who spoke no Spanish and stood 5'6” tall – more
than a half-foot taller than the female attacker. Importantly, Pearce was
taller than LeBrane, who said that the female “ringleader”
was shorter than herself.

The descriptions
offered by LeBrane and eyewitnesses who had seen the attackers either before or
after the assault were an uncanny match for the three male suspects who were
eventually tracked down. However, Pearce was a very poor fit with the description
provided for the female. In two suspect lineups, LeBrane identified women other
than Pearce as the female assailant. The other witnesses were told by the
deputy conducting the line-up that one of the subjects was a “person of
interest.” That statement effectively discredited the identification, since it
destroyed the double-blind nature of the exercise.

One eyewitness
also recalled that before being shown the subjects, a photo of Sarah Pearce was
shown on a video screen – a tactic seemingly calculated to produce a sense of
recognition and, therefore, a false identification. After Pearce was arrested
and placed in a lineup. Detective Robert Miles, who took over from Wayne
Christie as the lead investigator, told LeBrane to choose the subject who “most
closely resembled” the female perpetrator – which means that her selection of
Sarah Pearce was essentially useless.

Erica Curiel, July 2014.

During Pearce's
trial in 2003, confessed perpetrator Kenneth Wurdeman insisted that she was not
the woman who had participated in the crime. The trial judge refused to permit
an expert witness for the defense, BSU psychology professor Dr. Charles
Honts,to offer a critical examination
of the methods used by the Canyon County Sheriff's Office in conducting the
suspect lineups. Despite the fact that Pearce was too tall, of the wrong
ethnicity, spoke no Spanish, and had an alibi, she was convicted of six
felonies – including attempted murder – and sentenced to a term of 15 years to
life in prison.

Over the next
five years, Pearce filed several appeals, all of which were rejected. Her case
would have remained buried if it hadn’t been resurrected by Ginny Hatch, a BSU graduate
student volunteering with the Innocence Project.

With the
exception of LeBrane herself, every eyewitness contacted by Innocence Project
investigators recanted his testimony identifying Pearce as the female
perpetrator. Wayne Christie, who has since retired from the Canyon County
Sheriff’s Office, discovered an official report stating that Curiel had actually failed the polygraph examination – a fact that was not admissible as evidence against her, but would
have been useful to the defense. Prosecutor Virginia Bond withheld that
knowledge from Pearce’s defense counsel, most likely because it would have been
used to raise questions about the Sheriff’s curious eagerness to ignore a much
better suspect in the case.

As reported in a recent installment of
NBC’s Dateline program,
the Innocence Project was also able to document that following the attempted
murder, Erica Curiel and her accomplices had paid a visit to the Riveras, a
Caldwell family of long acquaintance, in order to wash their hands and dispose
of their bloody clothing. Since the parents had come to the United States without
official permission, and some of the sons were familiar with the inside of a cell, the entire family was vulnerable.

After years of refusing
to cooperate with the Innocence Project’s investigation, the family – in
keeping with the father’s dying wish – explained that prosecutor Virginia Bond
had intimidated them into silence about their experience with Curiel,
threatening to ruin their lives if they disclosed what they had seen and heard.

Last year, Pearce filed a petition for a new
trial. On several occasions the Canyon County Court scheduled hearings, only to
postpone them without explanation. Last March, DA Bryan Taylor, Bujak’s
successor, offered Pearce a cynical and sadistic deal: She could either accept
an early release from prison (after more than 11 years in prison) and strict
probation for the balance of her 15-year sentence, or spend an interminable
time in prison in the hope that the courts would eventually grant her a new
trial.

This proposal,
Bujak pointed out to me, is typical of the tactics used by prosecutors in both
plea bargain and post-conviction negotiations.

“Nearly all
convictions are secured through plea bargains, often involving people who are
in pre-trial detention with very limited means to defend themselves,” he
observes. “So prosecutors exploit the dynamics of a person’s understandable
desire to get out of jail and avoid prison. And when they’re dealing with
post-conviction challenges, they are in an even stronger position.”

If Pearce had
pursued a new trial and acquittal, she would almost certainly have spent
additional years – perhaps even decades – in prison. One condition of parole
was that she admit her guilt, which she will not do.

Knowing that she
was dealing with people equipped with inexhaustible resources and bottomless
reserves of malice, Pearce accepted Taylor’s offer and was released from prison
in March.This allowed Taylor, an
individual possessed of the pettiness and vindictiveness one would expect from
someone in his profession, to sneer that “the only truly innocent person in
this sad story of senseless violence is Linda LeBrane…. Today’s hearing closes
the book on the question of Sarah Pearce’s guilt – which has been proven beyond
a reasonable doubt and to the satisfaction of a jury of her peers.”

Peace remains a
convicted felon under a form of house arrest. Additionally, she is required to
pay LeBrane $50,000 in restitution through monthly increments of fifty dollars,
and faces the prospect of being sent back to prison for a parole violation if
she misses three payments.

It’s clear that
Taylor and his comrades at the Canyon County Sheriff’s Office are eager to
seize on any excuse to return Pearce to prison, where she may share the company
of Erica Curiel. Several years ago, Curiel was convicted on narcotics charges.
She was briefly paroled before returning to prison after assaulting her mother.
Despite – or perhaps because of – the
fact that the Innocence Project has done all of the necessary legwork to build
a case against Curiel, neither the DA nor the Sheriff’s Office has shown any
interest in re-opening the case – since this would mean vindicating Pearce and
exposing themselves to liability.

“One of the
really nasty things about our current system is the fact that post-conviction
appeals are civil motions, which means that an innocently convicted person can
be compelled to admit guilt in order to receive relief,” Bujak observes. “This
becomes an important risk management tool, because an admission of the
plaintiff's innocence would result in huge liabilities for the government
responsible.”

He holds out the
hope that at some point a “strong judiciary” would bring about reform by
“exposing the state to liability” in cases of false conviction. However, judges
have an institutional incentive to limit accountability.

“Both judges and
prosecutors enjoy `absolute immunity' for their official conduct,” points out
Bujak. “They are not personally liable for their official misconduct, which
means that they have no flesh over the fire, so to speak.” Judges – especially
those elected to their positions – are almost universally disinclined to compel
prosecutors to carry out their duty under the Supreme Court's Brady v. Maryland ruling by providing
potentially exculpatory evidence to the defense.

Although it is both an ethics
violation and a crime for a prosecutor to withhold evidence, it is all but
impossible to find an example of a post-conviction case in which a prosecutor
has been sanctioned for such behavior. This is why, in the words of Judge Alex
Kozinski of the Ninth Circuit Court of Appeals, we are seeing an “epidemic” of Brady violations nation-wide.

The first was an
extensive – one might say “Orwellian” – review of Olsen's online activity.
Within the 20,000 pages of records obtained by the Feds could be found a number
of searches related to such topics as “How to Kill,” “Silent Death,” “Getting
Even,” “death by poison,” and similar subjects.

The second pillar
of the federal case against Olsen was “expert” testimony from Arnold Melnikoff,
a forensic scientist with the Washington State Police, who insisted that a
bottle of allergy pills found among Olsen's effects had been “spiked” with
ricin, a deadly poison that can be made quite easily and with little expense.

Olsen's defense
counsel observed, correctly, that there was considerable evidence that
Melnikoff “handled and extensively manipulated” the pills before delivering
them to the FBI, which confirmed his findings. Melnikoff admitted that he had unceremoniously
dumped the pills onto a laboratory bench that had been contaminated with ricin.
This meant that it was impossible to determine if the ricin had been insinuated
into the pills, or if the pills had merely acquired a patina of the toxin after
being spread on Melnikoff's contaminated work station.

At the time of
the Olsen trial, Melnikoff was being investigated by the Washington State
Police for “misconduct involving courtroom testimony and/or case analysis” in
his previous role as head of the Montana State Crime Laboratory. An inept hair
sample analysis carried out by Melnikoff led to the wrongful conviction of
Jimmy Ray Bromgard, who spent 15 years in prison for supposedly raping an
8-year-old girl before he was exonerated by a DNA analysis. Washington State's
investigation discovered two more wrongful convictions in Melnikoff’s
background, which led to his termination. An appellate court ruled that he was
“incompetent and [had] committed gross misconduct.”

The Assistant US
Attorney in charge of prosecuting Kenneth Olsen was aware of the investigation
into Melnikoff's job performance, and the existence of a Washington State
Police report documenting his egregious and habitual misconduct. Instead of
providing this information to the defense, as he was required to under Brady, the prosecutor committed misprison of perjury by allowing the examiner's
defense attorney to misrepresent the investigation on the witness stand. The
singularly incurious trial judge ruled that Olsen's defense attorney would not
be allowed to cross-examine Melnikoff – who at the time had been placed on
administrative leave in Washington – regarding the investigation into his
professional conduct.

“As a result,” summarized
Judge Kozinski in a justifiably caustic dissent, “the government introduced the spiked
allergy pills and the jury heard Melnikoff's testimony, all without ever being
informed of these serious doubts about their reliability.”

As Kozinski
observed, the prosecutor “stood before the district judge and uttered
falsehoods about the WSP investigation [into Melnikoff's misconduct].” This
matters not, insisted the Ninth Circuit Court majority, since that the jury might
have convicted Olsen solely on the basis of the material provided through
government scrutiny of his extensive internet activity – which did not yield
evidence of actual intent to commit a criminal act against any identified
individual.

The court's
ruling against Olsen “is not just wrong, it is dangerously broad, carrying
far-reaching implications for the administration of criminal justice,” wrote
Kozinski. “It effectively announces that the prosecution need not provide
exculpatory or impeaching evidence so long as it’s possible the
defendant would've been convicted anyway. This will send a clear signal to
prosecutors that, when a case is close, it's best to hide evidence helpful to
the defense, as there will be a fair chance reviewing courts will look the
other way, as happened here.”

“Some prosecutors
don't care about Brady,” Kozinski
concludes, “because courts don't make them care.” And the behavior of
the prosecutor in the Olsen case is hardly “a rare blemish and source of
embarrassment to an otherwise diligent and scrupulous corps of attorneys
staffing prosecutors' offices across the country..... Brady violations have reached epidemic proportions in recent
years.”

Bujak, who is
pursuing a quixotic gubernatorial campaign as a Libertarian candidate, is
agitating for enactment of a bill that would deprive prosecutors and judges of
“absolute immunity” and make them personally liable – both civilly and
criminally – for misconduct resulting in an unjust conviction.

“There simply
cannot be power without accountability,” Bujak maintains. “We’ve been living
under a system in which prosecutors ruin the lives of innocent people with
impunity. They punish those who dare to insist on their right to a trial,
conceal evidence without professional or personal consequence, and then require
wrongfully convicted people to prolong the fiction of their guilt in order to
protect the people who had sent them to prison. This isn’t going to change
unless the people who administer the law are forced to live under it.”

10 comments:

Anonymous
said...

Wow! Excellent article, as usual. This really sums up how the state has the trial process rigged. No wonder the rich and famous tend to win their cases - bc they can hire lawyers and PIs that are much better than the weasel DAs.

Actually there is only one immunity in the Constitution and that is for the legislature. they are immune from arrest to or from and during session. That is a limited immunity and .."nevertheless they may be arrested for Treason, elony and Breach of the Peace...", Article I US Constitution. There is no other stated immunity for either the executive or the judiciary, See Article II and Article III. So it follows that prosecutors, executive, and judges, judicial, are not immune by any constitutionally delegated authority. There has been no amendment changing this limited authority-immunity-and all laws enacted or privelege asserted is not in pursuance to the Constitution. Marbury v. Madison stated that all judges are bound by the Constitution. They cannot make law by judicial decision, that is the authority delegated to the legislature and even those laws are subject to the limitations of the Constitution. In short this "immunity" is wholly contrived by these varmints to cover each other's backs. It has taken place over time We are only subjected to this because of our ignorance. If these varmints break the law the entire community needs to rise up and take them to task and run their asses out of town. This is how we eat this elephant, one bite at a time.

Point of fact is the statement in the Declaration and Resolves, circa 1774. It clearly and pointedly denounces the practice of judges indemnifying prosecutors against liability. These Declaration and Resolves were the forerunner to the Declaration of Independence. They say in very explicite detail what the declaration states in brief. In short prosecutors in colonial American could be sued for damages if they violated the rights of the people they were prosecuting. The colonists were pissed about it and went so far as entered it into the causes to boycott trade, and a whole list of other sanctions, with England which brought about the Revolution.

So in essence we have a bunch of foxes watching the hen house and our only resort is to the other foxes who are all the same species. Every attornet is a member of the Bar Association. The license to practice comes from the Bar Association which is a PRIVATE ORGANIZATION! It is not part of the state government and they regulate themselves, or so they say. So their immunity is imposed upon us by themselves.

Want another historical reference to this type of thing? Look up the word attorney in the Bible, see what Jesus had to say about them. Yep time changes but the propensity of criminals is the same whether they cloth themselves with false authority perpetrated by force and the illusion of authority or not. 2000 years and it hasn't changed a lick.

Of course if you doubt what I am saying, look it up, inform yourself, I have. That is why I can say these things with confidence and the mind to be completely resolute in what I say. So here is my foundation on knowing the truth, "My people are destroyed for their lack of knowledge". Hosea 4:6.

"The People- the People are the rightful masters of congress and the courts. Not to overthrow the Constitution but those men who pervert it."Abraham Lincoln, 1859

The accused is1) tried in a government courtroom;2) in an action presided over by a government Judge;3) prosecuted by a government lawyer4) defended by a lawyer licensed by the government

Sound like a recipe for justice to you?

By the way, it is impossible to derive a rigorous definition of "justice". It is virtually impossible to hit a poorly defined target and even harder to determine afterward whether you hit that target or not.

All criminal defendants should be required to enter a courthouse through a door over which is the inscription "Abandon hope, all ye who enter here."

Hey, even a stopped clock, etc., etc. Lincoln had the rhetoric right, just as Teddy Roosevelt did. Just so happens, both of 'em were otherwise a waste of air, but the quote is useful. Would that THEY were not the perverts who were so set on destroying what they so fulsomely praised.